Personnel Bd. v. Heck, s. 86-CA-209-S
| Decision Date | 26 November 1986 |
| Docket Number | 86-CA-595-S,CA-534-,CA-213-,86-CA-536-S,Nos. 86-CA-209-S,86-CA-446-,s. 86-CA-209-S |
| Citation | 725 S.W.2d 13 |
| Court | Kentucky Court of Appeals |
| Parties | PERSONNEL BOARD and the Department for Human Resources, Appellants, v. Joyce HECK, Appellee. STATE PERSONNEL BOARD and the Department for Human Resources, Appellants, v. Anna L. BYBEE and Joann B. Pickerell, Appellees. STATE PERSONNEL BOARD and the Department of Housing, Building and Construction, Appellants, v. Carl B. YOUNG, Appellee. STATE PERSONNEL BOARD and the Department for Human Resources, Appellants, v. Louis TRAVIS, Appellee. STATE PERSONNEL BOARD and the Department of Transportation, Appellants, v. Joseph WILLIAMS, Appellee. CABINET FOR HUMAN RESOURCES and the State Personnel Board, Appellants, v. John H. HAIL, Appellee. PERSONNEL BOARD and the Department for Human Resources, Appellants, v. John H. HAIL, Appellee. STATE PERSONNEL BOARD and the Transportation Cabinet, Appellants, v. Everett R. TURNER, Appellee. PERSONNEL BOARD and the Transportation Cabinet, Appellants, v. Jimmy D. BAKER, Appellee. STATE PERSONNEL BOARD and the Transportation Cabinet, Appellants, v. Charles D. WARD, Appellee. STATE PERSONNEL BOARD and Transportation Cabinet, Appellants, v. Denzil COMPTON and Darrell Wilson, Appellees. STATE PERSONNEL BOARD and the Transportation Cabinet, Appellants, v. William CASSADY and J.C. Summers, Appellees. STATE PERSONNEL BOARD and the Department of Housing, Buildings and Construction, Appellants, v. T.J. HODGES, Appellee. STATE PERSONNEL BOARD and the Cabinet for Natural Resources and Environmental Protection, Appellants, v. Joe COPASS, Appellee. Joe COPASS, Appellant, v. CABINET FOR NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION and the State Personnel Board, Appellees. STATE PERSONNEL BOARD, Appellant, v. William SACKETT and Cabinet for Human Resources, Appellees. PERSONNEL BOARD, Appellant, v. Joe L. BARBEE and the Cabinet for Human Resources, Appellees. STATE PERSONNEL BOARD; Department of Housing, Building and Construction, Appellants, v. Glenn HOWELL, Appellee. to 86-, 86- |
Steven G. Bolton, Frankfort, for State Personnel Bd.
Daniel F. Egbers, Frankfort, for Cabinet for Human Resources.
Hubert P. Griffin, Louisville, for Transp. Cabinet.
Myron Daniel Herndon, Lexington, for Cabinet for Natural Resources and Environmental Protection.
Judith G. Walden, Dept. of Housing, Bldg. & Const., Frankfort, for Dept. of Housing, Bldg. and Const.
Robert L. Dowell, Greensburg, and Herbert B. Sparks, Edmonton, for Anna L. Bybee and Joann B. Pickerell, Carl B. Young, Joseph Williams, Everett R. Turner, Charles D. Ward, Denzil Compton and Darrell Wilson, William Cassady and J.C. Summers, T.J. Hodges, Joe Copass, and Glenn Howell.
Donald Duff, Frankfort, for William Sackett.
Edwin A. Logan, Frankfort, for Joyce Heck, Louis Travis, John H. Hail, and Jimmy D. Baker.
William L. Willis, Frankfort, for Joe L. Barbee.
Before HAYES, C.J., and HOWERTON and REYNOLDS, JJ.
These consolidated appeals are from separate multiple judgments of the Franklin Circuit Court which reversed orders of the State Personnel Board (Board) confirming dismissal of the appellees by various state agencies, and which ordered that the appellees/employees be reinstated. In the cases numbered 86-CA-209-S and 86-CA-212-S we reverse. In all of the remaining cases we affirm, except that in 86-CA-583-S and 86-CA-1835-S we affirm in part, but remand for a reconsideration of back pay entitlement as hereinafter discussed.
The appellees herein were state employees who were laid off pursuant to a reorganization of certain state agencies. They appealed their lay-offs to the State Personnel Board, which found that they had been validly laid off pursuant to 101 KAR 1:120.
The laid-off employees then brought separate petitions for review in Franklin Circuit Court pursuant to KRS 18A. Among the issues raised in most of the petitioners' complaints were (1) failure to comply with KRS 12.060(2); 1 and (2) failure to comply with 101 KAR 1:120. Some complaints failed to raise the KRS 12.060(2) issue. However, subsequent to filing of the complaints, the issue of whether compliance with KRS 12.060(2) was mandatory came before the Court of Appeals. Most petitioners then filed motions in circuit court to abate their cases, pending resolution of the KRS 12.060(2) issue in this Court. In some cases the trial court sua sponte abated the cases. The respondents, both the agencies and the Board, failed to object in their answers or at the time the motions to abate were filed.
In all but two cases (86-CA-209-S and 86-CA-212-S), the Franklin Circuit Court entered a judgment setting aside the orders of the Personnel Board on the grounds that each agency had failed to comply with both KRS 12.060(2) and 101 KAR 1:120, and ordering that the employees in each case be reinstated with full pay and emoluments. In the other two cases, supra, the original judgment set aside the Board's order on the KRS 12.060(2) ground alone, but the order of reinstatement was identical.
Following entry of these judgments, the various agencies filed CR 59.05 motions to alter, amend or vacate the judgments, primarily on the ground that the petitioners had failed to raise the issue of failure to comply with KRS 12.060(2) before the Personnel Board and that the issue should therefore not have been before the circuit court.
After almost a year had passed, the circuit court entered what was titled an Order and Judgment, which limited itself to the issue of whether the issue of compliance with KRS 12.060(2) was preserved for review in circuit court. The order found that the issue was preserved, and reiterated its judgment ordering that the employees be reinstated. No mention was made of the first judgment, or of the separate ground forming the basis for the first judgment (failure to comply with 101 KAR 1:120). In two cases (86-CA-596-S and 86-CA-907-S), the petitioner/employees filed motions to alter or amend the latter judgment to reflect the rationale and holding of the first judgment, including the 101 KAR 1:120 issue. An amended judgment was then entered in each of those cases, specifically adopting the first judgment in its entirety.
The agencies and the Board filed notices of appeal in each case from the latter judgments, which had discussed only the preservation of the issue of compliance with KRS 12.060(2) in circuit court. No mention was made of the first judgments containing the issue of compliance with 101 KAR 1:120, even in the two cases in which the trial court had specifically adopted the first judgments in its amended judgment and order.
On appeal, none of the agencies assert any issue other than the trial court's alleged error in ruling that the issue of compliance with KRS 12.060(2) was preserved for review in circuit court. An additional issue on appeal was presented in the case of State Personnel Board v. Copass, (86-CA-583-S), however. Copass was apparently laid off under a reorganization plan, subsequently voluntarily rehired by his agency, and then discharged for cause. The judgment in his case (being identical to the other judgments in these cases) ignored the difference in Copass's factual situation, and ordered him reinstated with full back pay along with the other employees. The agency, after filing an appeal from the judgment, then filed a CR 60.02(f) motion in circuit court requesting amendment of the judgment to conform to the difference in the facts. This motion was ultimately granted over the objection of the employee. The trial court accordingly issued an amended judgment rescinding that portion of its previous judgment ordering that Copass be reinstated, and limiting his compensation to the period during which he was allegedly erroneously laid off. Copass then brought a separate appeal to this Court.
We first consider the appellants' contention that the trial court erred in considering an issue which had not been raised before the Personnel Board. Failure to raise an issue before an administrative body precludes a litigant from asserting that issue in an action for judicial review of an agency's action. Taxpayer's Action Group of Madison County v. Madison County Board of Elections, Ky.App., 652 S.W.2d 666, 668 (1983). See also, Cumberland Valley Rural Electric Cooperative v. Public Service Commission, Ky., 433 S.W.2d 103, 105 (1968). Taxpayer's, supra, did no more than extend to administrative cases the rule that a trial court (in this case the administrative body acting as a trial court) should first be given the opportunity to rule on questions or asserted errors of the court or agency before they are available for appellate review. See Akers v. Floyd County Fiscal Court, Ky., 556 S.W.2d 146, 152 (1977); Pittsburgh and Midway Coal Mining Co. v. Rushing, Ky., 456 S.W.2d 816, 818 (1969).
In addition, the procedures for review of decisions by the State Personnel Board are set out in KRS Chapter 18A. KRS 18A.100(5) provides that no "new or additional evidence shall be introduced in the Franklin Circuit Court except as to fraud or misconduct affecting the outcome of the case ...," and that "the court shall otherwise hear the case upon the record...." An issue not raised before the Board would not be in the record of the proceedings before the Board, and therefore would not be before the circuit court for review. KRS 18A.100(5).
The appellees argue that they were not responsible for raising the issue before the Board. Once the issue of the validity of the lay-off procedures was raised by the employees, the appellees argue, the agency then bore the burden of proving (apparently) that each and every statute and administrative regulation was complied with, regardless of whether noncompliance with a particular statute or regulation was specifically alleged by the employee. Appellees rely on language...
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